Khayat Investments Pty Ltd v Winston Holdings Pty Ltd [No 2]

[2011] WASCA 196 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	KHAYAT INVESTMENTS PTY LTD -v- WINSTON HOLDINGS PTY LTD [No 2] [2011] WASCA 196 (S)

CORAM	: MARTIN CJ NEWNES JA MURPHY JA
HEARD	:  1 JULY 2011
DELIVERED	:  21 SEPTEMBER 2011
SUPPLEMENTARY
DECISION	:  12 DECEMBER 2011
FILE NO/S	:  CACV 142 of 2010
BETWEEN	:  KHAYAT INVESTMENTS PTY LTD Appellant

AND

WINSTON HOLDINGS PTY LTD

First Respondent

AYOMAN PTY LTD
Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram	: ALLANSON J
Citation	:  KHAYAT INVESTMENTS PTY LTD -v- WINSTON HOLDINGS PTY LTD [No 2] [2010] WASC 374
File No	:  GDA 19 of 2010
Catchwords:

Costs - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1

Result:

The respondent pay 75% of the appellant's costs

Category: B

Representation:

Counsel:

Appellant	:	Mr J R Birman
First Respondent	:	Mr M W Fatharly
Second Respondent	:	Mr M W Fatharly

Solicitors:

Appellant	:	Birman & Ride
First Respondent	:	Kott Gunning
Second Respondent	:	Kott Gunning

[2011] WASCA 196 (S)

Case(s) referred to in judgment(s):

Khayat Investments Pty Ltd v Winston Holdings Pty Ltd [No 2] [2011] WASCA

196

JUDGMENT OF THE COURT [2011] WASCA 196 (S)

1. JUDGMENT OF THE COURT: For reasons published on 21 September 2011, this court upheld an appeal from the decision of the primary judge dismissing an appeal from the State Administrative Tribunal (the Tribunal), and ruled that unless and until the determination of rental made by a valuer appointed by the parties was set aside, the Tribunal lacked jurisdiction to itself determine the rent payable (Khayat Investments Pty Ltd v Winston Holdings Pty Ltd [No 2] [2011] WASCA 196).

2              At the time of publication of our reasons, the parties were unable to

agree as to the appropriate orders to be made with respect to the costs of the appeal. However, they agreed that the question of the costs of the appeal could be dealt with by the court on the papers and a timetable for the exchange of submissions on that topic was set. These are our reasons for concluding that the respondent should be ordered to pay 75% of the appellant's costs to be taxed if not agreed.

3              At the outset it should be noted that there is no contention between

the parties as to the costs of the proceedings before the primary judge, or in the Tribunal. Accordingly, the conduct of those proceedings is irrelevant to the only issue we have to determine, which concerns the costs of the appeal to this court.

4              The court has a broad discretion as to the costs of proceedings before

it, although the ordinary rule is that costs will follow the event and a successful party will generally be entitled to recover its costs (O 66 r 1 Rules of the Supreme Court). The respondent submits that there should be a departure from the general rule in this case, and that the appellant should be ordered to pay its costs of the appeal because the appeal was upheld on grounds which did not correspond to the grounds of appeal or the written submissions advanced in support of those grounds.

5              As we observed in our reasons, the grounds of appeal to this court,

and the written submissions filed in support of those grounds are very difficult to comprehend. As we also observed, however, it quickly became clear in the course of oral argument that essentially the appellant was contending, as it had to both the Tribunal and the primary judge, that the Tribunal lacked the jurisdiction to determine the rent payable as a consequence of the rental having been determined by the valuer appointed by agreement between the parties. That proposition was the essential basis upon which this court upheld the appeal. As we also noted, the written and oral submissions provided on behalf of the respondent

JUDGMENT OF THE COURT [2011] WASCA 196 (S)

adequately responded to that basic proposition with the result that no
prejudice was suffered by the respondent, or procedural fairness denied.

6              Nevertheless, the respondent was impeded in its preparation of the

appeal, and incurred unnecessary costs which were thrown away in having to respond to grounds and written submissions which were difficult to comprehend and which served to obscure, rather than elucidate the real issues in the appeal. Put another way, the obscurity of the grounds of appeal and written submissions added unnecessarily to the respondent's costs in responding to the appeal to a sufficient extent that an allowance for those unnecessary costs is appropriately made in the exercise of the discretion with respect to costs.

7              When a court departs from the general rule with respect to costs

because the conduct of the successful party has caused unnecessary expense to the other party, the extent of the allowance made is necessarily a matter of impression rather than a matter of science or precise mathematics. In this case, we take account of the fact that the hearing was relatively short, with the result that the proportion of the parties' costs incurred in relation to the written submissions which preceded the hearing could be expected to be somewhat greater than usual. Taking that consideration into account, it is our view that it is appropriate to depart from the general practice with respect to costs in this case, by reason of the obscurity of the grounds of appeal and written submissions provided by the appellant by ordering that the appellant recover 75% of its costs to be taxed if not agreed.